State v. Estes

• Decision Date: 08 June 2017
• Docket Number: No. 93143-7,93143-7
• Citation: 395 P.3d 1045,188 Wash.2d 450
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Kevin Lee ESTES, Respondent.

188 Wash.2d 450

395 P.3d 1045

STATE of Washington, Petitioner,

v.Kevin Lee ESTES, Respondent.

No. 93143-7

Supreme Court of Washington.

Argued Feb. 14, 2017

Filed June 8, 2017

Michelle Hyer, Pierce County Prosecutor, 930 Tacoma Ave. S., Rm. 946, Tacoma, WA, 98402-2102, for Petitioner.

Jennifer L. Dobson, Attorney at Law, P.O. Box 15980, Seattle, WA, 98115-0980, Dana M. Nelson, Nielsen Broman & Koch PLLC, 1908 E. Madison St., Seattle, WA, 98122-2842, for Respondent.

OWENS, J.

¶1 After an altercation where he cut someone's foot and pinky finger, Kevin Estes was convicted of felony harassment and third degree assault. The jury returned deadly weapon verdicts for both convictions, elevating both offenses to third "strikes" under Washington's three strikes law, the Persistent Offender Accountability Act (POAA). RCW 9.94A.030. The State then reminded the court that "this is a third strike case," to which Estes's attorney responded, "He wasn't convicted of a strike offense." 4 Verbatim Tr. of Proceedings (VTP) (Sept. 12, 2014) at 504. The prosecutor explained that Estes's convictions counted as strikes because of the deadly weapon enhancements. Estes was then sentenced to the mandatory minimum of life in prison.

¶2 Estes appealed, alleging ineffective assistance of counsel. See U.S. CONST. amend. VI ; CONST. art. I, § 22. He claimed his trial counsel did not know that he would be sentenced as a persistent offender if the jury convicted him of any felony with a deadly weapon enhancement. The Court of Appeals ordered a new trial, holding that counsel was ineffective because he did not understand the strike offense consequences and thus could not fully inform Estes of his options during the plea bargaining process. We agree and affirm the Court of Appeals.

FACTS

¶3 On February 19, 2014, Kevin Estes went over to his friend James Randle's apartment in Puyallup. Randle's roommate, Anthony Prusek, was also in the apartment that evening, along with Prusek's girlfriend, Ashley Stoltenberg.

¶4 Estes drank alcohol and played video games with Randle and Prusek while Stoltenberg watched television in another room. Estes soon began making comments about Stoltenberg's breasts, asking Prusek for a nude photo. Having overheard this exchange, an angry Stoltenberg came out of the bedroom and told Estes, " ‘If you do not stop talking about me like that, I am going to slap you.’ " 2 VTP (Sept. 8, 2014) at 84.

¶5 According to Stoltenberg, Estes then stood up aggressively and said, " ‘Time to die, bitch’ " while taking a knife out of his pocket. Id. at 86. Prusek grabbed Estes, and the two men struggled. Estes began "flailing around" with the knife, and Prusek's foot and pinky finger were cut while the men wrestled. Id. at 133.

¶6 Stoltenberg left the room and called 911. Meanwhile, Randle took the knife from Estes and put it on top of the refrigerator. Randle told Estes to leave because the police were coming, and Estes complied.

¶7 A responding officer, Officer Greg Massey, found Estes sitting in his car in the driveway. After an "angry and agitated" Estes opened the car door and told the officer that there had been a fight, the officer searched Estes and found a knife in his pocket. Id. at 209. Estes told the officer that this was not the knife from the incident. Nevertheless, Massey confiscated the knife and took it into evidence.

¶8 Another officer, Officer Steve Pigman, responded later in the evening and entered the apartment. He noticed a different knife on top of the refrigerator, and Stoltenberg told him that it was the knife used in the incident. That knife was not taken into evidence.

¶9 The State charged Estes with second degree assault against Prusek, second degree assault against Stoltenberg, and felony harassment against Stoltenberg, with deadly weapon enhancements added to each count. Because Estes had previously been convicted of two strike offenses under RCW 9.94A.030, the State filed a persistent offender notice warning that if the jury found Estes guilty of second degree assault, felony harassment, or any other most serious offense, he would be sentenced to life without the possibility of parole. The persistent offender notice did not provide any information about the impact of the deadly weapon enhancements.

¶10 During a discussion of jury instructions, defense counsel objected to an instruction on the lesser included offense of third degree assault and proposed instructions on fourth degree assault and self-defense. He did not object to the court's instructions on the deadly weapon enhancements or to the deadly weapon special verdict form for the felony harassment charge.

¶11 At closing arguments, the State argued that both the knife found on Estes's person and the one on top of the refrigerator were "deadly weapon[s]" because of their blade length or capacity to cause death. 4 VTP (Sept. 10, 2014) at 444-46, 453-54. Defense counsel argued that due to inconsistent accounts from witnesses, the State could not meet its burden of proving an assault occurred. He argued that the knife that was introduced into evidence was not the knife used in the incident, noting that witnesses remembered that the knife was "long and big and whatever," but that they knew nothing more about it. Id. at 468-69.

¶12 The jury acquitted Estes of both second degree assault charges, but found Estes guilty of one count of third degree assault (a lesser included offense) and felony harassment. They returned deadly weapon verdicts for both crimes, elevating them to strike offenses.¹

¶13 After the jury returned its verdicts and was excused, the following exchange took place:

[PROSECUTOR]: ... As the Court is aware, this is a third strike case. There's no issue as to—as to —

[DEFENSE COUNSEL]: He wasn't convicted of a strike offense.

[PROSECUTOR]: Apparently, the Defendant is a third strike case because of the deadly weapon enhancements, so there's no issue as to the sentencing.

Id. (Sept. 12, 2014) at 504.

¶14 Defense counsel then moved to dismiss the deadly weapon verdicts, arguing that they were inconsistent with the acquittals on second degree assault. He noted that "[t]he jury was not asked to make a determination of the weapon's length nor were they asked to determine whether the knife was per se a deadly weapon," and also argued that the sentences were disproportionate. Clerk's Papers (CP) at 340. The trial court denied the motion.

¶15 Constrained by the POAA, the trial court sentenced Estes to total confinement for life without the possibility of release. The trial judge stated at the close of sentencing, "I will just say that ... this is not the kind of strike that we typically would be looking for as a community to be a third strike." 4 VTP (Nov. 7, 2014) at 534.

¶16 Estes appealed, alleging ineffective assistance of counsel. The Court of Appeals reversed Estes's convictions, holding that defense counsel was ineffective because he did not understand the strike offense consequences and thus could not fully inform Estes of his options during the plea bargaining process. State v. Estes , 193 Wash.App. 479, 494, 372 P.3d 163 (2016). Judge Maxa dissented, stating that the record was inconclusive as to what Estes's attorney did or did not know. Id. at 495, 372 P.3d 163.

¶17 The State petitioned for review, which was granted. State v. Estes , 186 Wash.2d 1016, 380 P.3d 522 (2016).

ISSUES

1. Was Estes's trial counsel prejudicially ineffective?

2. Did the Court of Appeals rely on facts outside the record when it found ineffective assistance of counsel?

ANALYSIS

¶18 The State argues that Estes cannot show that his attorney's performance was deficient and that even if it was, he failed to show he suffered any prejudice resulting from deficient performance. Relatedly, the State also contends that the Court of Appeals relied on facts outside of the record when it found ineffective assistance of counsel. We disagree, affirm the Court of Appeals, and remand for a new trial.

A. Ineffective Assistance of Counsel

¶19 The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee the right to effective assistance of counsel. See U.S. CONST . amend. VI ; CONST . art. I, § 22. We review ineffective assistance of counsel claims de novo. State v. Jones , 183 Wn.2d 327, 338-39, 352 P.3d 776 (2015).

¶20 Washington has adopted Strickland v. Washington' s two-pronged test for evaluating whether a defendant had constitutionally sufficient representation. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; State v. Cienfuegos , 144 Wn.2d 222, 226, 25 P.3d 1011 (2001). Under Strickland, the defendant must show both (1) deficient performance and (2) resulting prejudice to prevail on an ineffective assistance claim. Strickland , 466 U.S. at 687, 104 S.Ct. 2052 ; Jones , 183 Wash.2d at 339, 352 P.3d 776.

¶21 Performance is deficient if it falls "below an objective standard of reasonableness based on consideration of all the circumstances." State v. McFarland, 127 Wash.2d 322, 334-35, 899 P.2d 1251 (1995). Prejudice exists if there is a reasonable probability that "but for counsel's deficient performance, the outcome of the proceedings would have been different." State v. Kyllo , 166 Wash.2d 856, 862, 215 P.3d 177 (2009) ; Strickland, 466 U.S. at 694, 104 S.Ct. 2052. The defendant must affirmatively prove prejudice and show more than a " ‘conceivable effect on the outcome’ " to prevail. State v. Crawford, 159 Wash.2d 86, 99, 147 P.3d 1288 (2006) (quoting Strickland, 466 U.S. at 693, 104 S.Ct. 2052 ). At the same time, a "reasonable probability" is lower than a preponderance standard. Strickland, 466 U.S. at 694, 104 S.Ct. 2052 ; Jones, 183 Wash.2d at 339, 352 P.3d 776. Rather, it is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

¶22 Washington courts also indulge a strong presumption that counsel's representation was reasonable. Kyllo , 166 Wash.2d at 862, 215 P.3d 177. Performance is...